Al Saleh v Nakeeb: Schrödinger's marriage

Image: Public Domain, via Piqsels

When the first paragraph of a judgment mentions Schrödinger's famous cat-in-the-box thought experiment then I am compelled to read on.

In full, the first paragraph of Mr Justice Poole's judgment in Al Saleh v Nakeeb reads as follows:

"The Appellant husband and Respondent wife married in Syria in 2000. The husband maintains that they divorced in 2010 but accepts that a Syrian court revoked that divorce in January 2017. Prior to the revocation, the wife petitioned for divorce in this jurisdiction in 2016. The husband contends in his grounds of appeal that although "the 2010 divorce was revoked with retrospective effect (as a matter of Syrian law)", the 2010 divorce "remained valid and effective". The physicist Erwin Schrödinger famously proposed a thought experiment in which paradoxically his cat could both exist and not exist at the same time. The paradox raised by the husband's appeal is that the parties were simultaneously both married and divorced."

Breaking the suspense, Poole J then informs us that the cat was alive he was dismissing the husband's appeal from a decision that the parties remained married at the date of the wife's petition.

Why so?

The background to the case was as follows:

1. The parties were married in Syria in 2000. This was a valid marriage, recognised as such in the jurisdiction of England and Wales.

2. The parties moved to England but in 2010 they returned to Syria with their two children.

3. In September 2010 the husband and his solicitor attended the local Sharia court in Khan Shaikhoun in Syria to pronounce talaq. A divorce document was subsequently issued by the civil registry of Khan Shaikhoun.

4. Poole J takes up the story: "The parties returned to England in 2010 and they reconciled within three months of the talaq, during the waiting period known as the idda. They cohabited in England and had a third child born in October 2014. On 6 August 2014 the husband signed a certification confirming his marriage to the wife but on 29 December 2014, in Bristol, the father pronounced talaq to the wife directly and communicated this to relatives and friends in Syria by video so they would be witnesses. The wife did not accept that this was an effective divorce." However, that talaq was a valid declaration, it was not followed by reconciliation, and so, under Syrian law, the divorce became final and ended the marriage between the parties from around 29 March 2015.

5. The husband married his second wife in Syria in August 2015.

6. In May 2016 the wife applied  to the Syrian court to revoke the 2010 talaq. 

7. In July that year the wife made an application to the Bristol Family Court under FLA 1986 for a declaration that the parties remained married, and on 31 August 2016 she petitioned for divorce in the same court. Decree nisi was pronounced on 4 November 2016.

8. On 9 January 2017 the Syrian court decided that the 2010 talaq had been revoked as of 29 November 2010, due to the reconciliation or "return" during the period of the idda.

9. The wife's FLA application was eventually heard in March this year. The court decided that the wife's "application for a declaration as to marital status in respect of the parties' marriage is successful, it being confirmed that the divorce that the respondent states took place on 23 September 2010 was not effective in Syria and was not therefore an overseas divorce to be considered as capable of recognition in the United Kingdom, and further, that at the date of the commencement of divorce proceedings in the United Kingdom, the parties were therefore married."

Hearing the husband's appeal against this decision, Poole J confirmed the decision of the court below that the second talaq was not recognised as a divorce in England and Wales, because s.44 FLA provides that "no divorce or annulment obtained in any part of the British Islands shall be regarded as effective in any part of the United Kingdom unless granted by a court of civil jurisdiction." The talaq was pronounced in Bristol and the husband took no further steps in relation to the divorce. He regarded the marriage to be terminated in accordance with Sharia law. 

Accordingly, Poole J concluded:

"The parties' marriage did not, like Schrödinger's cat, both exist and not exist at the same time. The decisions of the courts in Syria have confirmed that, for the purposes of Syrian law, the marriage lasted from 2000 until 29 March 2015. There was no break in the marriage in 2010. Given that the divorce of 29 March 2015 cannot be recognised in the jurisdiction of England and Wales because of the operation of s. 44 of the Family Law Act 1986, it follows that as of 31 August 2016 the parties marriage subsisted - they were married for the purposes of s.1 of the Matrimonial Causes Act 1973 and the wife's divorce petition was not null and void by reason of the parties being already divorced."